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A recent judgment in the North Gauteng High Court has clarified the circumstances in which closure orders in terms of Section 54 of the Mine Health and Safety Act, No 29 of 1996 (MHSA), may be carried out.

The judgment refers to the circumstances under which an inspector of mines may exercise his or her power to halt operations at a mine in terms of Section 54 of the MHSA.

“Closure orders in terms of Section 54(1) of the MHSA state that an inspector who has reason to believe that any occurrence, practice or condition at a mine endangers or may endanger the health or safety of any person at the mine may give an instruction necessary to protect the health or safety of any persons at the mine. This includes an instruction that the operations at the mine or a part of the mine be halted,” says law firm Brink Cohen Le Roux director Celeste Coles, who is also a mining and occupational health and safety expert.

In terms of these provisions, an inspector of mines may only halt the operations of a mine if he or she has reason to believe that certain circumstances exist which entitle him or her to exercise his or her powers.

Coles states that it is important that the inspector’s power is not exercised in an arbitrary manner.

“There must be objective facts which justify the exercise of the powers. Our courts have had the opportunity to interpret statutes with similar wording in the past, and it has been held that there must be a factual basis for the reasons. It is not sufficient that the official honestly thinks that there is a reasonable cause to believe.

“A reasonable cause must, in fact, exist. The use of these words are intended to serve as an objective condition, limiting the exercise of an otherwise subjective arbitrary power,” she explains.

The recent court judgment states further that, only if the occurrence, practice or condition at the mine endangers or may endanger the health and safety of employees, may an inspector of mines issue an order to halt the operations at a mine.

“In a recent case in the North Gauteng High Court, the words “reason to believe” in Section 54 of the MHSA were considered. The Court referred to the fact that two inspectors of mines from the Department of Mineral Resources (DMR) inspected one trackless mobile vehicle, after which they issued an order in terms of Section 54(1) to suspend the use of all trackless mobile machinery of the employer.

“This means that, objectively, a state of affairs must exist which would lead a reasonable person to believe that it may endanger the health or safety of any person at the mine, and the inspector may only give an instruction which is necessary to protect the health or safety of that person.

“The mine inspectors did not inspect more than one trackless mobile vehicle and they did not establish that the damage to the tread of the tyre of that vehicle would endanger the health or safety of any person at the mine. There were, therefore, no objective facts that would lead a reasonable person to believe that the damage to the tread would endanger the health or safety of any person at the mine,” Coles states.

She adds that there were also no objective facts to justify suspending the operation of the forklift, let alone all trackless mobile vehicles.

“If only the one forklift was involved, it was not necessary to suspend the operation of all the other trackless mobile vehicles. The order was clearly out of all proportion to what the two respondents found,” she says.

Coles explains that the above case has clearly defined the requirements of Section 54 of the MHSA and clarified the circumstances in which an inspector may exercise his or her power.

Brink Cohen Le Roux director Willem le Roux concurs that an inspector who issues an order in terms of Section 54 must ensure that the conditions of the order do not cause situations which are unsafe or which endanger the health or safety of persons.

“Frequently, orders are issued in terms of which all operations at a mine are stopped, with the inevitable consequence that all work being done to ensure the safety and health of persons must also be discontinued. Such an order is invalid. An inspector must, therefore, do a risk assessment to identify the hazards and assess the risks which may [result from] the proposed order prior to issuing it,” says Le Roux.

Meanwhile, the DMR has proposed certain amendments to the MHSA.

“One of the proposals is to delete the words “reason to believe” in Section 54 of the MHSA and replace the phrase with the word “observes”. However, if one gives consideration to the judgment in the aforementioned case, the application of the section is clear and certain. Le Roux expresses the view that it is unnecessary to amend the section. In fact, an amendment will, at best, create confusion.

“The correct implementation of Section 54 of the MHSA can go a long way to further improving safety in the mining industry provided inspectors of mines exercise their powers in an objective and reasonable manner,” concludes Coles.